Confidentiality in International Commercial Arbitration: A Comparative Study

Abstract

Confidentiality is a key factor in the arbitration process, as it assists the parties to a dispute in maintaining privacy and overcoming the potential damaging effects of the disclosure of critical information. However, there is no provision in international standards for the arbitration mechanism which relates to confidentiality. Therefore, this research focuses on confidentiality in international commercial arbitration, and, in particular, understanding the role of confidentiality in international commercial arbitration within the context of Saudi Arabia. A comparative study was conducted, which analyzed two jurisdictions (France, and England and Wales) in regard to confidentiality, while considering what the Kingdom of Saudi Arabia (KSA) can learn from these two jurisdictions. It was found that there are no provisions in the law of either jurisdiction regarding confidentiality; it is a duty agreed upon by the parties or decided by the arbitral tribunal. A Law Commission report also suggested that confidentiality should not be included within legislation regarding arbitration, as this will make it more complex, and the matter should remain one for parties to decide in their arbitration proceedings. There were a few recommendations to improve the KSA’s current Saudi Arbitration Law 2012 in terms of providing more flexibility and comfort regarding confidentiality, and also in terms of the need to modernise the legal structure, aligning it with international standards in order to achieve the national development plan Vision 2030. Despite new rules, such as CSSA, providing many changes in international arbitration, these new rules do not address aspects of confidentiality.